The more I see from Judge John Jones, the man who presided over the Dover trial, the more I like him. He recently gave a speech to the ADL and they’ve put the transcript of that speech on their webpage. I urge you all to read it. He doesn’t get into the specifics of defending his ruling, which judges generally avoid doing, but he does make a strong and more general argument about precedent and the job of a district judge that is aimed squarely at the critics of his decision. Those critics are so driven by their anger at not getting the outcome they wanted that they have blinded themselves to one of the fundamental aspects of how Federal courts operate. Below the fold I’ll paste a long excerpt from the speech that explains this in more detail.
Accordingly, and in that vein, I found it notable that among those who disagreed with my decision was one Phyllis Schlafly. I’m sure that you know who Ms. Schlafly is and I’ll not try to characterize her beyond saying she is a conservative columnist and pundit. I don’t know Ms. Schlafly and I assume based on her résumé that she’s a fine person. However, under the banner “Judge’s unintelligent rant against design,” Ms. Schlafly authored a January 2006 column and within her column she noted that, and I’m quoting here, that I “owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002” and that I, I’m still quoting here, “stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District.” Other than that, she really liked my decision. (Not really.)
Kidding aside, Ms. Schlafly obviously enjoys the same First Amendment right of free speech that we all do as citizens of the United States, and she’s entirely free to disagree, as she most pointedly did, in my conclusions. Hers is a point of view as it involves the establishment clause and establishment clause cases that many people share.
But the way that she conducted her analysis is instructive, and points out a problem which is pervasive and therefore threatens to, I think, tear at the fabric of our system of justice in the United States. Ms. Schlafly’s column makes it clear that she views me as an activist judge of the very worst kind. Yet in her column and within other criticisms directed at my opinion, time and again writers would omit to note the role legal precedents play as they relates how judges decide cases that come before them. That is, as a trial judge, I must follow the law as previously established by the higher courts and in particular by the Supreme Court of the United States.
The premise of Ms. Schlafly and some others seems to be that judges can and should act in a partisan matter rather than strictly adhering to the rule of law. Now, to those who believe that judges must cast aside precedents and rule as according to an agenda, let me say that I believe that the public’s dependence upon the impartiality and the integrity of judges is absolutely essential to its confidence in our system of justice. It is especially important for our citizens to understand that judges must be impartial and that the independence of the judiciary is premised on a judge’s pledge of freedom from partisan influences.
In the context of the Dover case, there exists over a half century of strong legal precedents which have emanated from the Supreme Court and the intermediate appellate courts. Among other things, this history verifies and validates not only the separation of church and state, but also guides us as judges with respect to the test that we must apply to the factual circumstances as we find them.
Applied correctly, these tests direct us in our determination of whether an act by a governmental entity, in this case the School Board, is violative of the establishment clause. Now, I won’t bore you with the case names or details, but suffice it to say that judges are constrained by their responsibility to interpret precedents that constitute the settled law of the United States.
That is precisely the task that I undertook in deciding the Dover case. Reasonable people may disagree whether I correctly applied those cases and precedents. However, I did not have the power – and Ms. Schlafly and others fail to mention this – I did not have the power to omit utilizing those tests, nor did I have the ability to invent tests other than those recognized by existing jurisprudence against which to measure the facts of the case.
Manifestly, I did what I believe all good judges must do, which is to approach the case without a political agenda or a bias or a predisposition or a thought that if a case is decided in a certain way, it will offend a political benefactor.
It’s always risky business to divine what the founding fathers might think about current developments, but I’m certain, I’m entirely certain, that by deciding the Dover case the way that I did, I performed my duties as a district judge in exactly the way that the founding fathers had in mind when they created the Federal Judiciary in Article III of the Constitution.
In fact, I will submit to you that had I decided the Dover matter in a different way, I would have then engaged in just the kind of judicial activism which critics decry. That is, to have ruled in favor of the School Board in this case based on the facts that I had before me at the conclusion of the trial, I would have had to have overlooked precedents entirely and thus impressed upon the facts of the case my sense or the sense of the public concerning what the law should be, and not what it is.
This is ad hoc justice based upon either my preferences or biases or the perceived will of the majority. Taken to its extreme, it is anarchy at any level that to rule in such a fashion represents the true work of an activist judge. And so the real criticism of my decision, and this is one which I will readily accept, is that I did not render an activist decision.
Now, I’m not the only one to suffer this type of criticism as a federal judge. Last year my colleague on the federal bench, a person who I know, Judge James Whitamore, faced a similar situation in the Terri Schiavo case. Judge Whitamore rendered a decision which I believe closely adhered to the law and precedents, only to be excoriated during the subsequent public maelstrom which attended that emotional situation. He was also denounced as an activist judge, out of touch. Some even called for his resignation.
Polls show that many Americans believe that it is acceptable to teach creationism in public schools. And early last year polls found that a great many Americans thought that Terri Schiavo should be kept alive. But I submit to you that as citizens, we do not want and in fact we cannot possibly have a judiciary which operates according to the polls, or one which rules based on who appointed us or according to the popular will of the country at any given moment in time. And this is no small matter as it relates to how our fellow citizens view the judiciary.
Back in Pennsylvania, I’m a member of a Commission on Judicial Independence as appointed by the Chief Justice of our state’s Supreme Court. Our Commission defines judicial independence in this way: A fundamental cornerstone of our justice system, and in fact of our federal and state government, is an independent judiciary. The concept requires judges to decide cases in front of them in a manner faithful to the law without fear or favor and free from political and external pressures. It is vital, in my opinion, that we promote judicial independence at every level of the judiciary. Do not misunderstand what I mean by that. Many people, when they hear the term “judicial independence,” think of an unfettered judiciary which is responsible to no person or entity – one which features judges deciding cases by doing what they please, free of any accountability. This is not what we, as judges, seek. This is not what we should seek. We are accountable. We should be criticized. Our decisions should be scrutinized and where inappropriate or wrong, they must be appealed and reversed.
However, we must not, I believe, “dumb down” the public by implying that judges should decide cases based on an agenda, or that they have a responsibility to act in concert with prevailing public opinion or the will of the majority. Worse than that, the press and the public have a responsibility, in my view, that is being shirked. That is to really foster a better understanding of the role of precedent in what judges do.
To be blunt, I think that many people need a civics lesson about the judicial system, because we are beginning to cross the line between fair comment and criticism of judges’ work into something which is much darker and debilitating. At its worst, the failure by some segments of the media and the public to understand the proper function of an independent judiciary leads to results which are not only frightening, but are at times tragic. All of you remember the murders of my colleague Judge Joan Lefkow’s husband and mother last February, shot by a disgruntled litigant whose case had been dismissed by the judge. The killer was lying in wait for Judge Lefkow and when he discovered her loved ones first, he killed them instead.
We cannot know if, in fact, the killer of Judge Lefkow’s family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was. As a result, as a direct result of the Lefkow murders, Congress has appropriated funds for security systems for the homes of United States judges. That is a very sad statement about our times.
And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore’s in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country. I’m sure you’ll agree that that’s a sad state of affairs and an alarming state of affairs.
By doing this, and by allowing this to happen, we are discouraging good people from seeking careers on the bench. In some cases, we’re losing judges who simply don’t want to undertake that responsibility in the face of these threats.
Now, as I conclude, let me return to the role of the Rule of Law, which is I think so fundamental and so embedded in our system of justice. We must never forget that the Rule of Law is not a conservative or a liberal value. It is assuredly not a Republican or Democratic value. Rather, it is an American value. Confidence in the Rule of Law rests entirely at any given point in time on the character and the integrity of the individual American judge and on that judge’s absolute commitment to fairness and impartiality.